BVA9505829
DOCKET NO. 90-30 036 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for the pulmonary disorders
of a granuloma on the lung and chronic obstructive pulmonary
disease (COPD).
2. Entitlement to an increased evaluation for a cavernous
hemangioma of the right forearm, wrist, and hand, currently rated
as 30 percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
William H. Hickman, Associate Counsel
INTRODUCTION
The veteran served on active duty between June 1955 and September
1967, and from July 1974 to September 1974. Between September
1967 and June 1974, and October 1974 and June 1988, the veteran
had various periods of active and inactive duty for training with
the reserves.
These matters come before the Board of Veterans' Appeals (Board)
on appeal from an April 1990, and subsequent rating decisions, of
the Department of Veterans Affairs (VA) Nashville, Tennessee,
Regional Office (RO). The case was previously before the Board
in May 1991 and November 1992 at which times it was remanded for
further development. The case is now before the Board for
appellate review.
An RO rating decision dated in May 1994 denied the veteran
service connection for sinusitis. A notice of disagreement has
not been filed with respect to this issue and it is not before
the Board at this time.
CONTENTIONS OF APPELLANT ON APPEAL
With respect to the claim for service connection for a granuloma
on the lung, it is contended, in essence, that the veteran's
service medical records indicate that a granuloma formed on the
veteran's right lung during a period of the veteran's reserve
service, and therefore, service connection for this disorder is
warranted.
With respect to the claim for service connection for COPD, it is
alleged, essentially, that a disorder for which treatment was
administered the veteran by military doctors during his reserve
service should be service-connected. This disorder was a
granuloma on the right lung and caused the veteran to have
pneumothorax, which in turn proximately resulted in the formation
of COPD.
With respect to the claim for an increased evaluation for a
cavernous hemangioma of the upper right extremity with varicose
veins, it is alleged, essentially, that this disorder causes the
veteran's right arm to be chronically swollen and painful and
that these symptoms, under the applicable rating code, warrant a
higher evaluation and, therefore, an increased evaluation for
this disorder should be granted.
Additionally, the veteran's representative has contended that the
case should be remanded in order to conduct a search for all of
the service medical records from the veteran's period of active
duty service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidentiary record is against the veteran's claim
for service connection for a granuloma of the lung and COPD, and
for a higher evaluation for a hemangioma of the right forearm,
wrist, and hand.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO.
2 The evidentiary record does not demonstrate that the
granuloma, which was first detected on a military reserve X-ray
in 1984, had its onset during active duty or active duty for
training.
3. COPD did not have its onset during active duty or active duty
for training.
4. Neither the granuloma nor COPD is etiologically related to
any incident of active duty or active duty for training.
5. The evidentiary record does not demonstrate that the
veteran's hemangioma of the right forearm, wrist, and hand is
characterized by persistent swelling.
CONCLUSIONS OF LAW
1. A granuloma on the lung was not incurred in or aggravated
during service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107
(West 1991); 38 C.F.R. §§ 3.303(b)(d) (1994).
2. COPD was not incurred in or aggravated during service.
38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991);
38 C.F.R. § 3.303(b)(d) (1994).
3. The criteria for an evaluation higher than 30 percent for a
cavernous hemangioma of the right forearm, wrist, and hand have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.20, Part 4, Diagnostic
Code 7121 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claims are well grounded. That is, they are claims
which are plausible and capable of substantiation. All relevant
facts have been properly developed and no further assistance to
the veteran, including additional VA examinations, is required to
comply with the duty to assist him mandated by 38 U.S.C.A.
§ 5107(a).
I. Service Connection for a Granuloma of the lung and for COPD.
A.. The Law and Regulations
Under the applicable law and regulations, service connection may
be established for a chronic disability resulting from personal
injury suffered or disease contracted during service in the line
of active duty or active duty for training, or for chronic
disability resulting from personal injury suffered during
inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110,
1131 (West 1991); 38 C.F.R. § 3.303(b) (1994).
Additionally, VA regulations provide that service connection may
be granted for
any disease diagnosed after discharge from service, when all the
evidence, including that pertinent to service, establishes that
the disease was incurred in service. 38 C.F.R. 3.303(d)(1993).
B. The Veteran's Period of Active Duty Service.
The veteran's active duty service medical records from his period
of service from 1955 to 1967 are not available with the exception
of the results of a service medical evaluation board held in
1967. However, it is not contended that the claimed pathologies
arose during the veteran's term of active duty, nor do the
service medical records from the veteran's period of reserve
service demonstrate the appearance of the claimed pathologies
prior to 1983. Since the Board, in May 1991, remanded the case
specifically to search for the active duty service medical
records, and since that search yielded no results, and since the
medical evidence of record indicates that the medical records
prior to 1983 would not be pertinent to the claim, no further
search for the active duty service medical records will be made.
Additionally, since the evidentiary record does not demonstrate
the existence of either claimed pathology prior to the decade of
the 1980's, long after the veteran terminated active duty
service, service connection for the claimed disorders on the
basis of active duty service is denied. 38 U.S.C.A. §§ 1110,
1131 (West 1991); 38 C.F.R. § 3.303 (b)(d) (1994).
C. The Veteran's Period of Reserve Service.
The reports of annual physical evaluations conducted on the
veteran during his
reserve service between 1978 and 1983 do not demonstrate the
existence of pulmonary pathology.
In April 1986 the veteran underwent a chest X-ray at a service
hospital. This reported the presence of 19 mm. nodular density
in the lower right chest area. Based on a second X-ray, it was
thought that the density was on the right lobe of the lung.
The physician reviewing the results of the X-ray also discussed
the reports of radiographic studies done in 1985 and in 1984.
The study in 1984 suggests it was done in conjunction with an
annual military physical evaluation. He indicated that the
density appeared on both of these films though to a lesser
degree. He also reviewed a film from April 1983 and reported,
essentially, that this study was negative for the density.
In a letter dated in May 1986, Joe Wilhite, M.D., reported that
the veteran underwent a needle biopsy of the right lower lobe at
Millington Hospital, with the final diagnosis being of an
inactive granuloma awaiting cultures. He further stated that
complications occurred because of a pneumothorax which re-
expanded.
Reserve medical records confirm the statements of Dr. Wilhite,
M.D. A record dated in May 1986 indicates the veteran developed
pneumothorax secondary to a needle biopsy.
The report of a service radiography study dated in June 1986
noted that the right lung nodule was still present, but that no
pneumothorax was present. Impression was of stable nodule right
lung--no pneumothorax.
The report of reserve retirement physical examination included
the results of radiographic studies undertaken in February 1988.
This confirmed the presence of a 2 cm. nodule within the right
lung. Also reported was right lung volume loss involving the
lower right lobe and several linear densities which were seen as
possibly representing areas of parenchymal fibrosis. Also noted
was the presence of pleural thickening consistent with chronic
pleural scarring. The impression was of: a 2 cm. nodule of the
right middle lobe, pleural atelectasis and parenchymal scarring
of the right base.
VA outpatient medical records from the VA medical center in
Memphis, Tennessee, and VA hospital discharge reports from the
same facility dated in March and April 1990, reveal that the
veteran was diagnosed as having COPD as well as respiratory
failure.
In November 1993 the Board remanded the case in order to
ascertain what pulmonary disorders were currently present, and to
obtain a medical opinion as to whether any of the currently
diagnosed disorders were etiologically related to the diagnosed
pulmonary pathology reflected in the reserve service medical
records.
Following a VA examination, conducted in April 1994, the veteran
was diagnosed as having, in pertinent part: severe COPD with
oxygen dependency; history of right solitary pulmonary nodule
considered benign for five years; history of pneumothorax
following biopsy of the right solitary pulmonary nodule; and
history of empyema on the right requiring surgical drainage. The
physician offered the opinion that the combination of these
processes had led to severely impaired pulmonary function, and as
a result the veteran was severely crippled and unable to carry
out any functional activity.
Since there is some indication that the COPD may have been
precipitated, at least in part, by the granuloma and the
pneumothorax arising during the diagnostic workup, the veteran
can prevail if either the granuloma or COPD had its onset during
active duty or active duty for training.
In order for the granuloma or COPD to be service-connected, the
evidentiary record must demonstrate that the disorder arose while
the veteran was on active duty for training. 38 U.S.C.A.
§§ 101(24), 106, 1110, 1131 (West 1991).
With respect to the veteran's periods of active duty for
training, the service personnel records in evidence indicate that
between July 1983 and July 1984 the veteran had sixteen days of
active duty for training (unspecified as to when), and between
July 1984 and July 1985 he had zero days of active duty for
training, and that between July 1985 and July 1986 he had 14 days
of active duty for training which were accomplished between July
28, 1985, and August 10, 1985. No active duty for training is
indicated for the month of May 1986, when the record reflects the
veteran underwent the needle biopsy at a service medical
facility.
According to the physician, who performed the radiographic
studies on the veteran in April 1986, and who then reviewed
previous service X- ray studies, the granuloma first appears on
service X-rays taken at the time of an annual military physical
evaluation done in 1984. A copy of the veteran's annual military
physical evaluation done in 1984 is of record and it is dated in
April 1984. Therefore, the 1984 X-rays studies referred to by
the reviewing physician in 1986 also will be assumed to be dated
in April 1984. Since the available service personnel records do
not denote that the veteran served on active duty for training
other than in the months of July and August and the veteran does
not claim that he was on active duty for training in April 1984,
the granuloma, first detected in April 1984, was not first
manifest during a period of active duty for training. In similar
fashion, the pneumothorax arising in May 1986 and COPD have not
been found to have been in existence, according to the medical
evidence of record, during a period when the veteran was on
active duty for training. Accordingly, service connection cannot
be granted for either pathology on the basis that it arose as the
result of active duty for training. 38 U.S.C.A. §§ 101(24), 106,
1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(b)(d) (1994).
In reaching this decision the Board has considered its obligation
of affording the veteran the benefit of any doubt as mandated by
38 U.S.C.A. § 5107(b). However, the evidentiary record does not
demonstrate an approximate balance of positive and negative
evidence so as to warrant resolution of the issue in favor of the
appellant.
II. The Claim for an Increased Evaluation for the Service-
Connected
Cavernous Hemangioma.
A review of the service medical records indicates that, pursuant
to the findings of a
service physical evaluation board, the veteran was separated from
active duty in September 1967 because of being found physically
unfit to perform his duties due to the presence of a cavernous
hemangioma of the right forearm, wrist, and hand. He continued
to serve in the reserve forces up through June of 1988. The
reports of the annual reserve physical examinations, dated
between 1978 and 1988, indicate that the condition was noted, but
these reports did not indicate that the disorder was considered
to be disqualifying from reserve duty.
In June 1988 the veteran retired from the military. In January
1990 he filed a claim
for the disorder. An RO rating decision dated in April 1990
awarded the veteran service connection for a cavernous hemangioma
of the right forearm, wrist, and hand, with varicose veins, and
assigned a non-compensable rating. Based on the report of a VA
dermatological examination accomplished in October 1991, which
indicated that the hemangioma was extensive, that it
intermittently swelled and caused the veteran pain, and that the
swelling precluded the veteran from closing his hand, an RO
rating decision dated in November 1991 assigned the veteran a 30
percent evaluation for the disorder.
The veteran underwent another VA examination in April 1994. He
complained that the right hand palmar lesion became hard and
tender thus making it difficult for him to grip anything. On
physical examination it was reported that from the right elbow to
the right hand the veteran had numerous purple venous lesions
which on compression would empty and fill back up. These were
described as mildly tender. Similar lesions were reported on the
palm of the right hand, one of which, in the palm's center, was
indicated as being tender. Numerous lesions were reported on the
right hand's little finger, but arterial circulation was
described as good. The veteran was able to make a complete fist,
and he had no neurologic deficit in the upper right extremity.
Radiographic studies reported that there were multiple
calcifications in parts of the cavernous hemangioma. The
diagnosis was: cavernous hemangioma of the right distal arm,
right forearm, right wrist, and right hand. The examiner
remarked that the lesion would continue to get slowly larger and
that the veteran's palmar symptoms would continue.
Disability evaluations are based upon a comparison of clinical
findings with the applicable schedular criteria. 38 U.S.C.A. §
1155 (West 1991); 38 C.F.R. Part 4, (1994). When the schedular
criteria does not list the disorder in question, it can be rated
by analogy to the criteria listed for a similar disorder.
38 C.F.R. § 4.20 (1994). The rating schedule does not contain a
diagnostic code for hemangioma.
The disorders of phlebitis or thrombophlebitis can be considered
analogous to the veteran's disorder since they involve venous
pathology with symptoms of pain, swelling and discoloration.
Under 38 C.F.R. Part 4, Diagnostic Code 7121 (1994), phlebitis,
or thrombophlebitis, with symptoms of persistent swelling
subsiding only very slightly and incompletely with recumbency
elevation with pigmentation cyanosis, eczema or ulceration
warrants a 60 percent evaluation. If there is persistent
swelling of the arm or forearm, increased in the dependent
position, with moderate discoloration, pigmentation, or cyanosis
a 30 percent evaluation is warranted.
A review of the VA examination reports in 1991 and 1994 shows
that the veteran has swelling in the area of the hemangioma. He
has also described the area as hard and tender. Apparently these
symptoms make it difficult for him to grip things. Since
swelling is not always found on physical examination, it can be
concluded that the veteran does not have persistent swelling but
rather intermittent. The basic difference between the criteria
for a 30 percent rating and a 60 percent rating is the nature of
the swelling and condition of the skin. In either case the
swelling should be persistent but for the higher rating it must
be shown that the swelling subsides only slightly. The higher
rating could also be justified if there were eczema or
ulceration. In view of the fact that the swelling is
intermittent and there is no eczema or ulceration, there is no
basis to consider the next higher rating of 60 percent. The
current rating is adequate for compensating the veteran for the
pigmentation and discoloration of the skin and swelling he
currently experiences.
The Board has also considered whether the veteran is entitled to
an extraschedular rating under the provisions of 38 C.F.R.
§ 3.321(b)(1) which provide that compensation can be awarded on
an extraschedular basis if the evidentiary record demonstrates
the existence of exceptional circumstances such as the service-
connected disorder requiring frequent periods of hospitalization,
or substantially interfering with the veteran's employment.
Since the evidentiary record does not demonstrate such
circumstances in this case a rating higher than 30 percent an
extraschedular basis is not warranted.
In reaching this decision the Board has considered its obligation
of affording the veteran the benefit of any doubt as mandated by
38 U.S.C.A. § 5107(b). However, the evidentiary record does not
demonstrate an approximate balance of positive and negative
evidence so as to warrant resolution of the issue in favor of the
appellant.
ORDER
Service connection for a granuloma of the lung, and chronic
obstructive pulmonary disease, is denied.
An increased evaluation for a hemangioma of the right forearm,
wrist, and hand is denied.
JAN DONSBACH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.